United States v. Rice

• Court: Court of Appeals for the Armed Forces
• Decided: May 21, 2020
• Docket: 19-0178/AR
• Status: Published

Opinion

This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES _______________

UNITED STATES Appellee v. Robert J. RICE, Colonel United States Army, Appellant No. 19-0178 Crim. App. No. 20160695 Argued October 16, 2019—Decided May 21, 2020 Military Judges: Tyesha L. Smith and Andrew J. Glass For Appellant: Stephen I. Vladeck, Esq. (argued); Lieu- tenant Colonel Christopher Daniel Carrier and Cap- tain Zachary Gray (on brief). For Appellee: Major Catharine M. Parnell (argued); Colonel Steven P. Haight, Lieutenant Colonel Wayne H. Williams, and Captain Allison L. Rowley (on brief). Judge RYAN delivered the opinion of the Court, in which Chief Judge STUCKY and Judges OHLSON and SPARKS, joined. Judge MAGGS filed a separate dis- senting opinion. _______________

Judge RYAN delivered the opinion of the Court.1 Appellant possessed and distributed child pornography. The U.S. Attorney’s Office for the Middle District of Pennsyl- vania thus prosecuted Appellant for violating 18 U.S.C. § 2252A (2006 & Supp. II 2008). A military convening author- ity subsequently prosecuted Appellant in the military justice system for this same conduct under Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2006). This case thus presents the following issues: First, can the federal sov- ereign use two court systems, civilian and military, to bring

1 We heard oral argument in this case at J. Reuben Clark Law School at Brigham Young University, Provo, Utah, as part of the Court’s Project Outreach. See United States v. Mahoney, 58 M.J. 346, 347 n.1 (C.A.A.F. 2003). This practice was developed as part of a public awareness program to demonstrate the operation of a fed- eral court of appeals and the military justice system. United States v. Rice, No. 19-0178/AR Opinion of the Court

successive prosecutions for precisely the same conduct, where the only element the federal civilian statute includes that the military statute does not is jurisdictional? Second, what is the remedy for a successive prosecution? We conclude that the Double Jeopardy Clause bars such prosecutorial practices, Grafton v. United States, 206 U.S. 333 (1907), and that the remedy here is dismissal of the two possession specifications that were tried at the successive prosecution. We then re- mand the single distribution specification for further review by the lower court. I. Facts and Procedural History In February 2013, Appellant’s wife contacted local civilian law enforcement to report that she believed her husband was viewing and distributing child pornography. The subsequent investigation uncovered 10,000 images and videos of child pornography from several of Appellant’s electronic devices, including a Hewlett-Packard (HP) laptop and an external hard drive. A digital forensic examination of these devices re- vealed that Appellant electronically shared some of these im- ages with other internet users via Yahoo! Messenger. The investigation led to two parallel prosecutions—one ci- vilian and one military. On May 14, 2014, Appellant was in- dicted in the United States District Court for the Middle Dis- trict of Pennsylvania for violations of 18 U.S.C. § 2252A(a)(2), (5). Count One of the federal indictment alleged that Appel- lant possessed material containing child pornography be- tween August 2010 and January 29, 2013,2 and Count Two alleged that Appellant received and distributed child pornog- raphy between January 23, 2013, and January 28, 2013. 3

2 18 U.S.C. § 2252A(a)(5)(A)–(B), which delineates the elements of possession of child pornography, requires proof that the accused did knowingly possess or access with intent to view any material “that contains an image of child pornography” and that the material has been transported “using any means or facility of interstate or foreign commerce or in or affecting” interstate commerce or “was produced using materials that have been . . . transported in or af- fecting” interstate commerce. 3 18 U.S.C. § 2252A(a)(2)(A)–(B) delineates the elements of re- ceipt and distribution of child pornography, requiring proof that the

2 United States v. Rice, No. 19-0178/AR Opinion of the Court

On September 17, 2015, the military convening authority referred, inter alia, the following charges and specifications to a general court-martial as violations of clause 2 of Article 134, UCMJ: (1) that Appellant distributed six images of child pornography on the HP laptop between November 30, 2010 and December 6, 2010 (Charge II, Specification 2); (2) that Appellant possessed forty-five images of child pornography on the same HP laptop between November 25, 2010 and January 11, 2012 (Charge II, Specification 3); and (3) that Appellant possessed six videos of child pornography on his external hard drive on November 14, 2010 (Charge II, Specification 4).4 These specifications referenced the definition of child pornog- raphy set forth in 18 U.S.C. § 2256 (2006). In May 2016, Appellant was convicted in the district court on both counts—possession of child pornography and receipt and distribution of the same in violation of 18 U.S.C. §§ 2252A(a)(2), (5). The Government used both the HP laptop and external hard drive to prove that Appellant possessed “material that contains” child pornography. These same materials were the basis for Appellant’s mili- tary charges. Moreover, the dates alleged in the military spec- ifications were wholly subsumed within the time frame charged at the district court: The civilian possession charge covered conduct spanning from August of 2010 to January 29, 2013, while the military specifications targeted Appellant’s conduct on November 14, 2010, from November 30, 2010 to

accused did knowingly receive or distribute “any child pornography using any means or facility of interstate or foreign commerce or that has been mailed, or has been shipped or transported in or affecting interstate or foreign commerce by any means, including by com- puter.” 4 The Article 134, UCMJ, offenses with which Appellant was charged required a finding that (1) Appellant knowingly and wrong- fully possessed or distributed child pornography, and (2) under the circumstances, his conduct was “of a nature to bring discredit upon the armed forces.”

3 United States v. Rice, No. 19-0178/AR Opinion of the Court

December 6, 2010, and from November 25, 2010 to January 11, 2012.5 Consequently, on June 20, 2016, Appellant moved to dis- miss the military specifications as barred by double jeopardy. The military judge denied the motion. Appellant then entered a guilty plea conditioned on the ability to appeal the military judge’s denial of the motion. On October 24, 2016, the military judge, sitting as a general court-martial, convicted Appellant, pursuant to his pleas, of one specification of distribution of child pornography and two specifications of possession of child pornography, all in violation of Article 134, UCMJ. The military judge sentenced Appellant to confinement for five years and a dismissal. The convening authority approved the dismissal and four years of confinement. Appellant returned to the district court for sentencing on November 10, 2016,6 where he moved to dismiss the posses- sion charge (Count One), contending it was barred by double jeopardy as a successive punishment due to his sentence for the possession specifications at his court-martial. The Gov- ernment did not oppose this motion. The district court dis- missed Count One and sentenced Appellant to 142 months of imprisonment on the civilian distribution count (Count Two). Appellant appealed the military judge’s ruling on the dou- ble jeopardy issue to the United States Army Court of Crimi- nal Appeals (ACCA). United States v. Rice, 78 M.J. 649 (A. Ct. Crim. App. 2018). The ACCA held that the possession specifi- cations violated double jeopardy. Id. at 653–54. The conduct underlying Count One at the district court was possession of child pornography on the HP laptop and the external hard

5 The conduct underlying the distribution charge in district court was wholly distinct from the court-martial distribution speci- fication since it happened from January 23 to 28, 2013—more than a year later. 6 In federal district court, findings and sentencing procedures are separated in time, often by a few months. See Justice 101: Sen- tencing, Office of the United States Attorneys, https://www.jus- tice.gov/usao/justice-101/sentencing (last visited May 19, 2020). In the military, findings and sentencing are separate phases, but or- dinarily occur together in time.

4 United States v. Rice, No. 19-0178/AR Opinion of the Court

drive spanning the period of August 2010 to January 2013; the conduct underlying the military charges concerned the same materials and fell squarely within that time frame. Id. at 653. The ACCA reasoned that because double jeopardy would bar the Government from charging this conduct under clause 3 of Article 134, UCMJ, it would also prevent the Gov- ernment from doing so under clause 2 of the same. Id. at 653– 54. The ACCA nevertheless concluded that Appellant re- ceived his remedy for this violation when the district court dismissed the possession count prior to sentencing. Id. at 655–56.7 We granted Appellant’s petition to review the following is- sue: “Whether the Double Jeopardy Clause of the Fifth Amendment requires dismissal of Appellant’s convictions.” As to the specifications under the charge alleging possession, we hold that it does. II. Discussion The Fifth Amendment provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.”8 U.S. Const. amend. V. The prohibition against dou- ble jeopardy not only protects against multiple punishments for the “same offence,” United States v. Dixon, 509 U.S. 688, 696 (1993) (internal quotation marks omitted) (citation omit- ted), but “shield[s] individuals from the harassment of multi- ple prosecutions for the same misconduct,” Puerto Rico v. Sanchez Valle, 136 S. Ct. 1863, 1877 (2016) (Ginsburg, J., with whom Thomas, J., joined, concurring). It also “forbids successive prosecution and cumulative punishment for a greater and lesser included offense.” Brown v. Ohio, 432 U.S.

7 The ACCA declined to answer the question whether Appel- lant’s “District Court conviction for possessing child pornography was a lesser-included offense of his court-martial conviction for dis- tributing child pornography.” Rice, 78 M.J. at 654 n.10; see discus- sion infra p. 14. 8 The general bar on successive prosecutions is made particular in the military through Article 44, UCMJ, 10 U.S.C. § 844 (2012), and Rule for Courts-Martial (R.C.M.) 907(b)(2)(C).

5 United States v. Rice, No. 19-0178/AR Opinion of the Court

161, 169 (1977). Whether a prosecution violates double jeop- ardy is a question of law that this Court reviews de novo. See United States v. Hutchins, 78 M.J. 437, 444 (C.A.A.F. 2019). The double jeopardy prohibition applies only where “the same act or transaction” is involved. Blockburger v. United States, 284 U.S. 299, 304 (1932); see also Ex parte Lange, 85 U.S. (18 Wall.) 163, 168 (1873); United States v. Coleman, 79 M.J. 100, 103 (C.A.A.F. 2019) (“[S]eparate acts may be charged and punished separately.”). In examining whether two statutory crimes are the “same offence” for purposes of the Fifth Amendment, courts apply the test articulated in Blockburger: “[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied . . . is whether each provision requires proof of a fact which the other does not.”9 284 U.S. at 304; see United States v. Anderson, 68 M.J. 378, 385 (C.A.A.F. 2010) (observing Blockburger is the proper test in the military). Under Block- burger, if two offenses have the same elements, those offenses are the “same offence” and “double jeopardy bars . . . succes- sive prosecution.” Dixon, 509 U.S. at 696 (internal quotation marks omitted) (citation omitted). Courts determine whether two offenses are the same through a “strict facial comparison of the elements.” Coleman, 79 M.J. at 103. The Government does not argue that the charges in the district court and military court-martial were based on differ- ent conduct. Rather, it argues that because 18 U.S.C. § 2252A contains a jurisdictional element and Article 134, UCMJ, as charged, contains not that element, but the element that the conduct is “service discrediting,” the charged offenses are not the “same offence” for purposes of the Fifth Amendment’s pro- hibition on double jeopardy. While a strict application of Blockburger would support the Government’s position, we re- ject the mechanical application of Blockburger to permit suc- cessive prosecutions by two distinct criminal apparatuses of the same federal sovereign under the circumstances pre- sented in the instant case. Instead, we approach the applica- tion of Blockburger to the offenses in this case in light of: (1)

9 This test is also used to determine whether one offense is a lesser included offense (LIO) of another and therefore barred by double jeopardy. See, e.g., Brown, 432 U.S. at 168–69.

6 United States v. Rice, No. 19-0178/AR Opinion of the Court

the sui generis nature of Article 134, UCMJ; (2) the Supreme Court’s recent treatment of the jurisdictional element for Ti- tle 18 offenses in other contexts; and (3) the Supreme Court’s decision in Grafton. After considering these points below, we conclude that where the conduct and mens rea charged under Article 134, UCMJ, are proscribed by directly analogous federal criminal statutes, the jurisdictional element of the Title 18 offense is not considered for purposes of determining whether it is the same offense as, or an LIO of, the Article 134, UCMJ, of- fense.10 Cf. United States v. Leonard, 64 M.J. 381, 383 (C.A.A.F. 2007) (permitting reference to the maximum pun- ishment for a directly analogous federal statute even where the Article 134, UCMJ, specification did not include the rele- vant jurisdictional element). A. Military Jurisdiction and Article 134, UCMJ In addition to state criminal systems, military members are subject to the concurrent jurisdiction of the federal civil- ian criminal system and the military justice system. See R.C.M. 201(d)(2) (2008 ed.) (“An act or omission which vio- lates both the [UCMJ] and local criminal law, foreign or do- mestic, may be tried by a court-martial, or by a proper civilian tribunal, foreign or domestic, or, subject to R.C.M. 907(b)(2)(C) and regulations of the Secretary concerned, by both.”); see also Ortiz v. United States, 138 S. Ct. 2165, 2174– 75 (2018) (“[T]he jurisdiction of [courts-martial] overlaps sig- nificantly with the criminal jurisdiction of federal and state courts.”). While the federal criminal system charges offenses under Title 18 of the U.S. Code, which offenses must be “con- nected to one of [Congress’s] constitutionally enumerated powers” to confer jurisdiction, Luna Torres v. Lynch, 136 S.

10 We emphasize here the narrow scope of our holding. Appel- lant was first tried in a federal civilian district court and subse- quently tried in a court-martial—another adjudicative body of the same sovereign—for the same conduct under clause 2 of Article 134, UCMJ, which omitted the Title 18 offense’s jurisdictional element. Our holding does not reach beyond the “unusual facts” of this case, and thus “does not extend to those situations where additional sub- stantive elements distinguish an offense charged under Article 134, UCMJ, from another criminal offense.” Rice, 78 M.J. at 654 n.7.

7 United States v. Rice, No. 19-0178/AR Opinion of the Court

Ct. 1619, 1624 (2016) (noting one such power is Congress’s “authority to regulate interstate commerce”), the military jus- tice system charges offenses under Title 10, which depends only upon the status of the accused for jurisdiction. Article 2, UCMJ, 10 U.S.C. § 802 (2012); see Solorio v. United States, 483 U.S. 435, 450–51 (1987). Article 134, UCMJ, the “General Article,” is an expansive, flexible, and amorphous prosecutorial tool within the military justice system with no analog in Title 18. Intended to serve as a means for a military commander to meet and enforce the exigencies of military discipline, see William Winthrop, Mili- tary Law and Precedents 720–26 (2d ed., Government Print- ing Office 1920) (1895) (discussing the history, development, and construction of the General Article), it “requires a finding that (1) the accused did or failed to do certain acts,” and (2), proof that Appellant’s conduct was “to the prejudice of good order and discipline in the armed forces,” “of a nature to bring discredit upon the armed forces,” or a “crime or offense not capital.” Manual for Courts-Martial, United States pt. IV, para. 60.b (2008 ed.); see also Anderson, 68 M.J. at 385. The General Article can thus be used to vindicate particular mili- tary interests—via the first two terminal elements—or to as- similate wholesale any Title 18 offense “not capital” into the military justice system using the third terminal element. The exceptionally broad statutory language and potential for abuse is balanced, in large part, by this Court’s duty to con- strain it. Cf. United States v. Gleason, 78 M.J. 473, 476 (C.A.A.F. 2019) (recognizing that the Supreme Court expects military appellate courts to act “as checks against [Article 134’s] potentially over-expansive use” (citing Parker v. Levy, 417 U.S. 733, 752 (1974)); see also Parker, 417 U.S. at 754 (noting that the way this Court’s predecessor construed the General Article and Article 133, UCMJ, “narrowed the very broad reach of the literal language of th[ose] articles”). All agree, and we cannot ignore, that double jeopardy would prohibit the successive prosecution of the military charges if the Government had charged these offenses under clause 3 of Article 134, UCMJ, alleging a violation of 18 U.S.C. § 2252A. That the Government understood this is clear, given its reference to 18 U.S.C. § 2256 for definitional purposes, but charging under clause 2 of Article 134, UCMJ.

8 United States v. Rice, No. 19-0178/AR Opinion of the Court

But there is no evidence that Congress intended Article 134, UCMJ, to serve as a vehicle for the military to reprosecute Title 18 offenses tried in a federal civilian court simply by re- moving a jurisdictional element and charging it as a violation of clause 1 or 2. Such a scheme would only work if misconduct alleged under Title 18 and Article 134, UCMJ, vindicated sep- arate interests, but Grafton, discussed infra pp. 11–12, spe- cifically forecloses this possibility. See 206 U.S. at 353–55 (re- jecting the notion that the accused “committed two distinct offenses,—one against military law and discipline, the other against the civil law”). The singular importance of this observation for limiting the strict application of Blockburger in the context of the in- tentionally capacious Article 134, UCMJ, is buttressed by the total lack of expressed intent of Congress to hold military members, and only military members, subject to prosecution for the same misconduct by two courts of the United States and any state court whose laws the misconduct violates. B. Jurisdictional Elements Based on principles of federalism and comity towards state governments, federal jurisdiction over criminal offenses requires a federal nexus as an element of the offense, known as the “jurisdictional element.” Luna Torres, 136 S. Ct. at 1624. Jurisdictional elements tie “the substantive offense ([e.g.], arson) to one of Congress’s constitutional powers ([e.g.], its authority over interstate commerce), thus spelling out the warrant for Congress to legislate.” Id. While the Su- preme Court has not had occasion to address the importance of a jurisdictional element in the context of double jeopardy,11

11 We of course agree that jurisdictional elements, like any other, need to be pleaded and proven, Luna Torres, 136 S. Ct. at 1630 (noting that jurisdictional elements “must be proved to a jury beyond a reasonable doubt”), and that Congress can and does crim- inalize the same conduct under different statutes based on different harms, cf. Albernaz v. United States, 450 U.S. 333, 343 (1981) (hold- ing conspiracy to import and conspiracy to distribute marijuana, stemming from the same conduct, were not the same offense for double jeopardy purposes because importation and distribution of marijuana “impose diverse societal harms”). See United States v. Rice, __ M.J. __, __ (5 n.6) (C.A.A.F. 2020) (Maggs, J., dissenting).

9 United States v. Rice, No. 19-0178/AR Opinion of the Court

it has considered and disregarded jurisdictional elements in other contexts. See, e.g., Rehaif v. United States, 139 S. Ct. 2191, 2196 (2019) (Mens rea does not apply to jurisdictional elements because they “do not describe the ‘evil Congress seeks to prevent,’ but instead simply ensure that the Federal Government has the constitutional authority to regulate the defendant’s conduct (normally, as here, through its Com- merce Clause power).”); Luna Torres, 136 S. Ct. at 1625 (hold- ing that a state crime was an aggravated felony like its fed- eral counterpart even though it lacked the jurisdictional element); Lewis v. United States, 523 U.S. 155, 165 (1998) (noting the Assimilative Crimes Act does not apply “where both state and federal statutes seek to punish approximately the same wrongful behavior—where, for example, differences among elements of the crimes reflect jurisdictional, or other technical, considerations”). Moreover, in its most recent decision involving double jeopardy, the majority in Gamble “assumed, without deciding, that the state and federal offenses at issue . . . satisf[ied] the other criteria for being the ‘same offence’ under our double jeopardy precedent,” 139 S. Ct. at 1964 n.1 (citing Block- burger, 284 U.S. at 304), though the state offense, Ala. Code § 13A-11-72(a) (2015), did not contain the jurisdictional ele- ment found in the federal offense, 18 U.S.C. § 922(g)(1) (2012). See Gamble, 139 S. Ct. at 1998 (Gorsuch, J., dissent- ing) (The “statute under which the federal government pro- ceeded required it to prove no facts beyond those Alabama

But this fails to address the situation here, where the Government elected to recharge the same conduct under the amorphous Article 134, UCMJ, and claims it’s not the same offense—or a greater or lesser included offense—because of the Government’s ability to charge the conduct under clause 2, though Grafton holds that there are no different harms. 206 U.S. at 355. Pereira v. United States, 347 U.S. 1 (1954), is not to the contrary, as it neither stands for the proposition that jurisdictional elements must be included in every Blockburger analysis, nor did the Court there have reason to con- sider Article 134, UCMJ, at all. See id. at 9. Further, while the Pe- reira Court noted the interstate commerce element of § 2314, it did not employ that element in distinguishing between the two of- fenses. Id.

10 United States v. Rice, No. 19-0178/AR Opinion of the Court

needed to prove under state law to win its conviction; the two prosecutions were for the same offense.”). While we assumed in United States v. Roderick, 62 M.J. 425 (C.A.A.F. 2006), that we could not disregard a jurisdic- tional element in conducting a multiplicity analysis, id. at 432, we did so without consideration of the Supreme Court’s decision in Lewis, 523 U.S. at 165. Moreover, in Roderick, we noted that the appellant had not “identified any authority which would allow this court to disregard a statutory element of a crime during a multiplicity analysis.”12 62 M.J. at 432. However, since Roderick, such authority has emerged. Specif- ically, our later decision in Leonard, 64 M.J. at 385, and the Supreme Court’s recent decisions in Rehaif and Luna Torres make clear that there is a distinction between substantive el- ements and jurisdictional elements. And we think those dif- ferences are valid ones when determining what constitutes the same offense for purposes of a double jeopardy analysis involving Article 134, UCMJ. C. Same Sovereign Nor in assessing the blind application of Blockburger to the facts of this case can we ignore the Grafton decision, which stands for the unremarkable proposition that a single sovereign cannot escape double jeopardy’s confines by succes- sively prosecuting an accused for the same—or a lesser in- cluded—offense in two different judicial systems that draw their authority from the same source. 206 U.S at 352. The Grafton Court considered whether the accused, an Army private stationed in the Philippines, could be prosecuted by the United States for homicide in federal court in the Philippine Islands after a general court-martial had already tried him for—and acquitted him of—a military charge for the same conduct. Id. at 341–42, 348–49. Attempting to dodge the double jeopardy bar to this subsequent prosecution, the government argued that Grafton had “committed two distinct offenses,—one against military law and discipline, the other against the civil law which may

12 Multiplicity “is a concept that derives from the Double Jeop- ardy Clause.” United States v. Quiroz, 55 M.J. 334, 337 (C.A.A.F. 2001) (internal quotation marks omitted) (citation omitted).

11 United States v. Rice, No. 19-0178/AR Opinion of the Court

prescribe the punishment for crimes against organized society, by whomsoever those crimes are committed.” Id. at 351. The Supreme Court rejected this argument, stating that although Congress “has the power to prescribe rules for the government and regulation of the Army, . . . these rules must be interpreted in connection with the” double jeopardy prohibition. Id. at 352. It also noted that court-martial jurisdiction “is not exclusive, but only concurrent with that of the civil courts.” Id. at 348. Without applying a strict elements approach, the Supreme Court considered the identity and authority of the prosecuting parties and the unitary interest sought to be vindicated through the successive prosecutions.13 See id. at 351–54. Of particular importance to the case at bar, the Supreme Court rested its decision not on a comparison of elements, but: upon the broad ground that the same acts constitut- ing a crime against the United States cannot, after the acquittal or conviction of the accused in a court of competent jurisdiction, be made the basis of a sec- ond trial of the accused for that crime in the same or in another court, civil or military, of the same gov- ernment.14 Id. at 352. D. Conclusion and Application It is strictly true that the 18 U.S.C. § 2252A and Article 134, UCMJ, offenses have different elements. But Block- burger must be applied in light of (1) the unique circum- stances at play between Article 134, UCMJ, and any federal

13 In contrast, the same misconduct can be the basis for prose- cution under separate statutory provisions of different sovereigns because the same act, by transgressing the laws of two sovereigns, creates a “duality of harm.” Gamble, 139 S. Ct. at 1967. 14 Nor has the Supreme Court overruled Grafton, and any dis- cussion of it at all has been limited to dicta. See, e.g., Dixon, 509 U.S. at 708 n.13. Unless and until the Supreme Court rules differ- ently, we follow Grafton’s unremarkable—though essential—hold- ing in assessing how to apply the Blockburger test when comparing charges by the same sovereign for the same conduct under two court systems and two criminal codes of that sovereign.

12 United States v. Rice, No. 19-0178/AR Opinion of the Court

crime covered under Title 18, (2) the treatment of jurisdic- tional elements by the Supreme Court in other contexts, and (3) the Grafton decision. To apply the test without considera- tion of these facts would be both myopic and at odds with the dangers against which the Double Jeopardy Clause seeks to protect—prosecutorial and penal excess.15 Ex parte Lange, 85 U.S. at 173 (“[T]he Constitution was designed as much to pre- vent the criminal from being twice punished for the same of- fence as from being twice tried for it.”). 1. The Possession Specifications An application of the Blockburger elements test without considering the jurisdictional element in § 2252A reveals that that civilian possession offense is an LIO of the offense charged under Article 134, UCMJ. The Article 134, UCMJ, offense as charged wholly encompasses the civilian possession offense and requires the Government to additionally prove the conduct was service discrediting, thus making it the greater offense. The military possession specifications are thus barred by both Article 44, UCMJ, and the Fifth Amend- ment’s Double Jeopardy Clause. Compare 10 U.S.C. § 934, with 18 U.S.C. § 2252A, supra notes 2–4. 2. The Distribution Specification Appellant argues that his district court conviction for pos- sessing child pornography was an LIO of his court-martial conviction for distributing child pornography, and thus the later distribution prosecution was barred by double jeopardy. See Brown, 432 U.S. at 169 (“Whatever the sequence may be, the Fifth Amendment forbids successive prosecution and cu- mulative punishment for a greater and lesser included of- fense.”); see also Currier v. Virginia, 138 S. Ct. 2144, 2150 (2018).

15 The doctrine against unreasonable multiplication of charges is one bulwark against prosecutorial overreach within the military justice system, see, e.g., Quiroz, 55 M.J. at 337, but it does nothing to guard against successive prosecutions by two arms of the same sovereign for the same conduct, separated by nothing more than a jurisdictional element that simply tethers the offense to one of Con- gress’s enumerated powers.

13 United States v. Rice, No. 19-0178/AR Opinion of the Court

The ACCA recognized that this was a “close question.” Rice, 78 M.J. at 654 n.10 (citing United States v. Dudeck, 657 F.3d 424, 431 (6th Cir. 2011) (collecting cases; underlying facts dictate whether receipt and possession are separate chargeable offenses for double jeopardy purposes)); see also id. (citing United States v. McElmurry, 776 F.3d 1061, 1064– 65 (9th Cir. 2015) (“Neither possession nor distribution of child pornography is necessarily a lesser-included offense of the other.”)). Our lower courts have acknowledged the fact- intensive inquiry this question requires. See, e.g., United States v. Williams, 74 M.J. 572, 575–76 (A.F. Ct. Crim. App. 2014) (suggesting the inquiry turns on whether additional steps separated his possession from the receipt and distribu- tion of contraband images); United States v. Purdy, 67 M.J. 780, 781 (N-M. Ct. Crim. App. 2009) (same). The ACCA declined to decide the issue, Rice, 78 M.J. at 654 n.10, reasoning that even if the district court possession charge were an LIO of the court-martial distribution charge, Appellant received all he was entitled to when the district court dismissed the possession count, id. As discussed below, we disagree. Given that answering the LIO question in the context of possession and distribution depends upon a fact-bound inquiry, we remand this question to the ACCA; the military distribution charge is therefore not considered for purposes of discussing the remedy for a successive prosecu- tion. 3. Remedy The ACCA held, and the Government argues, that Appel- lant received his remedy for any double jeopardy violation when the district court dismissed the possession count. Rice, 78 M.J. at 655–56. We disagree. Regardless of the district court’s action, Appellant’s court-martial was a successive prosecution barred by double jeopardy. Accordingly, the pos- session specifications must be dismissed. The Double Jeopardy Clause “is a guarantee against being twice put to trial for the same offense.” Abney v. United States, 431 U.S. 651, 661 (1977); see also Green v. United States, 355 U.S. 184, 187 (1957) (“The constitutional prohibi- tion against ‘double jeopardy’ was designed to protect an in-

14 United States v. Rice, No. 19-0178/AR Opinion of the Court

dividual from being subjected to the hazards of trial and pos- sible conviction more than once for an alleged offense.”). A successive prosecution is a distinct wrong because it forces an accused “to endure the personal strain, public embarrass- ment, and expense of a criminal trial more than once for the same offense.” Abney, 431 U.S. at 661; see also Green, 355 U.S. at 187–88 (“[T]he State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”). Where the State “make[s] repeated at- tempts to convict an individual for an alleged offense,” Abney, 431 U.S. at 661, “the only available remedy is the traditional double jeopardy bar against the retrial of the same offense.” Currier, 138 S. Ct. at 2153 (plurality opinion) (rejecting issue preclusion as acceptable remedy for double jeopardy viola- tions). The ACCA’s decision and the Government’s argument to this Court misapprehend the dual harms against which double jeopardy protects and the effect of a violation. The timing and manner in which events unfolded estab- lish Appellant’s court-martial as a successive prosecution. See Jones v. Thomas, 491 U.S. 376, 381 (1989) (Double Jeopardy Clause protects against both successive prosecutions and multiple punishments for the same offense imposed in single proceeding). The district court tried Appellant before his court-martial but sentenced him after. The court-martial, an- other federal forum, see Grafton, 206 U.S at 352, tried him second for the “same offense,”16 after he timely—but unsuc-

16 Our disposition reaches only the specifications for possession of child pornography, which are wholly consumed by the possession charge at the district court: The civilian prosecution was for conduct spanning from August of 2010 to January 29, 2013, while the mili- tary specifications targeted Appellant’s conduct from November 25, 2010 to January 11, 2012, and on November 14, 2010. As noted above, see supra p. 14, we leave it for the ACCA to address whether the possession charge at the district court is an LIO of the distribu- tion specification, which falls within that time frame but may con- stitute separate conduct.

15 United States v. Rice, No. 19-0178/AR Opinion of the Court

cessfully—sought dismissal of his court-martial charges be- cause he had already been tried by a federal civilian court. While the district court ultimately dismissed the possession charge based on double jeopardy, that action does nothing to remedy the distinct violation of Appellant’s constitutional protection against a second prosecution. Regardless of what the district court did, the question is what the military justice system—which tried Appellant after he had been tried in the district court—could do without run- ning afoul of double jeopardy. Cf. Abney, 431 U.S. at 662 (“[E]ven if the accused is acquitted, or, if convicted, has his conviction ultimately reversed on double jeopardy grounds, he has still been forced to endure a trial that the Double Jeop- ardy Clause was designed to prohibit.”). Thus, while the ACCA viewed the wrong to remedy as multiple sentences, the Double Jeopardy Clause’s prohibition is textually against “be[ing] twice put in jeopardy.” U.S. Const. amend. V. We agree with Appellant that the military judge erred in denying his motion to dismiss the possession specifications to bar retrial. Because the Double Jeopardy Clause bars succes- sive prosecutions, the district court’s dismissal of Count One did nothing to rectify the Government’s violation of Appel- lant’s right not to be twice prosecuted for the same offense. Having been “retried,” the charges from the “retrial” must be dismissed. Cf. Ex parte Nielsen, 131 U.S. 176, 183–84 (1889) (Where “a constitutional immunity of the defendant was vio- lated by the second trial and judgment . . . the party is enti- tled to be discharged from imprisonment.”). III. Conclusion The decision of the United States Army Court of Criminal Appeals is reversed in part as to the findings and as to the sentence. The two findings of guilty for the specifications of possession of child pornography are dismissed. The record and finding of guilty for the specification of distribution of child pornography are returned to the Judge Advocate Gen- eral of the Army for remand to the ACCA for further review under Article 66, UCMJ, 10 U.S.C. § 866, and specific consid- eration and resolution of the question whether that distribu- tion specification is or is not a lesser included offense of the

16 United States v. Rice, No. 19-0178/AR Opinion of the Court

federal district court conviction for possessing child pornogra- phy. If the ACCA determines that the distribution offense is a lesser included offense, it shall dismiss the remaining charge and specification per the analysis herein. If the ACCA determines that the distribution offense is not a lesser in- cluded offense and affirms the conviction, it may reassess the sentence in view of the dismissal of the possession specifica- tions. If the ACCA determines that it cannot reassess the sen- tence, the case will be remanded to an appropriate convening authority for a rehearing on the sentence.

17 United States v. Rice, No. 19-0178/AR

Judge MAGGS, dissenting. The Government prosecuted Appellant first in a U.S. Dis- trict Court and then later at a general court-martial. Appel- lant argues that the second prosecution violated the Double Jeopardy Clause of the Fifth Amendment and asks that we set aside the findings of guilt on Charge II, Specifications 2, 3, and 4. In my view, under the test announced in Blockburger v. United States, 284 U.S. 299 (1932), no Double Jeopardy Clause violation occurred. Accordingly, I would affirm the judgment of the United States Army Court of Criminal Ap- peals. I respectfully dissent. I. Specifications 3 and 4 The Double Jeopardy Clause provides that no person “shall . . . be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. Appellant con- tends that his trial by court-martial for the offenses alleged in Charge II, Specifications 3 and 4, violated this prohibition because he had already been tried for the same conduct in federal court. Specifications 3 and 4 alleged that Appellant possessed child pornography in violation of Article 134, UCMJ, 10 U.S.C. § 934 (2006),1 while Count I of the federal

1 Specification 3 of Charge II alleged that Appellant violated Article 134, UCMJ, in that he: [d]id, at or near Carlisle Barracks, Pennsylvania, on divers occasions between on or about 25 November 2010 and on or about 11 January 2012 knowingly and wrongfully possess 45 images of child pornogra- phy, as defined in 18 U.S.C. Section 2256, on a HP Pavilion Laptop computer, such conduct being of a nature to bring discredit upon the armed forces. Specification 4 of Charge II alleged that Appellant violated Ar- ticle 134, UCMJ, in that he “[d]id, at or near Carlisle Barracks, Pennsylvania, on or about 14 November 2010 knowingly and wrongfully possess 6 videos of child pornography, as defined in 18 U.S.C. Section 2256, on a Seagate Hard Drive, such conduct being of a nature to bring discredit upon the armed forces.” United States v. Rice, No. 19-0178/AR Judge MAGGS, dissenting

indictment alleged that he possessed child pornography in vi- olation of 18 U.S.C. § 2252A(a)(5).2 Appellant asserts that the offenses are legally and factually duplicative because the pe- riods of possession alleged in Specification 3 and 4 (i.e., be- tween November 25, 2010, and January 11, 2012, for Specifi- cation 3, and “on or about 14 November 2010” for Specification 4) are wholly within the period of possession al- leged in Count I (i.e., between August 2010 and January 29, 2013). The Government, however, responds that under Block- burger, trying Appellant for both the UCMJ and Title 18 of- fenses did not violate the Double Jeopardy Clause. The Su- preme Court held in Blockburger that the “applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” 284 U.S. at 304. The Government contends that the charged § 2252A(a)(5) offense required proof of an element that the charged Article 134, UCMJ, offense did not (i.e., that the child pornography had been transported in or affected interstate or foreign commerce),3 and the charged of- fenses under Article 134, UCMJ, required proof of an element

2 Count I of the federal indictment charged Appellant with pos- sessing child pornography “[b]etween about August 2010 and about January 29, 2013,” in violation of 18 U.S.C. § 2252A(a)(2), (5). 3 18 U.S.C. § 2252A(a)(5)(B) provides: Any person who . . . knowingly possesses, or know- ingly accesses with intent to view, any book, maga- zine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography that has been mailed, or shipped or transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means, including by com- puter, or that was produced using materials that have been mailed, or shipped or transported in or af- fecting interstate or foreign commerce by any means, including by computer; . . . shall be punished as provided in subsection (b).

2 United States v. Rice, No. 19-0178/AR Judge MAGGS, dissenting

that the charged § 2252A(a)(5) offense did not (i.e., that Ap- pellant’s conduct was service discrediting).4 Appellant replies that, in applying the Blockburger test, this Court should ig- nore the “interstate or foreign commerce” element in § 2252A(a)(5) because this element is merely “jurisdictional,” and that the Court should ignore the “service discrediting” el- ement in Article 134, UCMJ, because possessing child pornog- raphy is inherently service discrediting. With these two ele- ments ignored, Appellant argues, the offenses proscribed by § 2252A(a)(5) and Article 134, UCMJ, are the same. I agree with the Government’s position that the test an- nounced in Blockburger governs this case. The Supreme Court held in United States v. Dixon, 509 U.S. 688 (1993), that the Blockburger elements test is the only test for determining whether offenses charged under two statutes should be con- sidered the same offense for the purpose of the Double Jeop- ardy Clause. In Dixon, the Supreme Court overruled the por- tion of Grady v. Corbin, 495 U.S. 508 (1990), that had applied a “same conduct” test in addition to the Blockburger elements test. Dixon, 509 U.S. at 704. In addition, the Supreme Court in Dixon also specifically rejected arguments that other ear- lier cases, such as Grafton v. United States, 206 U.S. 333 (1907), had established alternative tests that might be ap- plied. Dixon, 509 U.S. at 708 n.13 (explaining Grafton under “the traditional Blockburger elements test”).

Subsection (b) then lists the permissible punishments, the details of which are not at issue here. 4 Article 134, UCMJ, provides in relevant part: Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good or- der and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court. As quoted above, Specifications 3 and 4 alleged that Appellant’s conduct was of “a nature to bring discredit upon the armed forces.”

3 United States v. Rice, No. 19-0178/AR Judge MAGGS, dissenting

I further agree with the Government’s argument about the application of the Blockburger test. Trying Appellant un- der 18 U.S.C. § 2252A(a)(5) and Article 134, UCMJ, did not violate the Double Jeopardy Clause because each offense re- quired proof of an element that the other did not. I disagree with Appellant’s position that we can ignore elements when applying the Blockburger test. Appellant has cited no case in which the Supreme Court or this Court has ignored elements of offenses when applying the Blockburger test,5 and his ar- guments that we should ignore the interstate commerce ele- ment in § 2252A(a)(5) and the service discrediting element in Article 134, UCMJ, conflict with decisions of the Supreme Court, our Court, and other U.S. courts of appeals. Appellant’s assertion that we can ignore the interstate commerce element in § 2252A(a)(5) because it is merely a ju- risdictional element is contrary to the Supreme Court’s deci- sion in Pereira v. United States, 347 U.S. 1 (1954), which did

5 Appellant relies mainly on Luna Torres v. Lynch, 136 S. Ct. 1619 (2016), but that decision is not relevant to the issues in this case. Luna Torres did not concern or even mention the Blockburger test. Instead, the Supreme Court in Luna Torres was interpreting a provision of the Immigration and Naturalization Act that made aliens deportable for committing certain federal offenses and their state law analogues. The Supreme Court held that when comparing state laws to federal laws to determine whether they are analogous, the absence of a jurisdictional element in a state law statute is im- material for the purpose of the Act. Id. at 1623. The Supreme Court said nothing about comparing federal statutes or about double jeop- ardy. Appellant also relies heavily on Lewis v. United States, 523 U.S. 155 (1998), which held that the federal Assimilated Crimes Act did not require a strict comparison of elements in deciding whether state crimes are punishable by federal enactments. That case also did not concern the Double Jeopardy Clause or application of the Blockburger test. Appellant also cites United States v. Leonard, 64 M.J. 381 (C.A.A.F. 2007), but that decision is also not relevant be- cause it did not address the Double Jeopardy Clause or the Block- burger test. Instead, this Court held in Leonard that a military judge could determine the maximum punishment for an offense un- der Article 134, UCMJ, by reference to a federal statute that pro- hibited analogous misconduct even though the federal statute re- quired proof of a jurisdictional element that the Article 134 offense did not. Id. at 383.

4 United States v. Rice, No. 19-0178/AR Judge MAGGS, dissenting

not ignore jurisdictional elements in applying the Block- burger test. In Pereira, the petitioners swindled a widow in a scheme that involved mailing a check from California to Texas. Id. at 5. The Supreme Court held that the evidence was sufficient to convict the petitioners of both mail fraud in violation of 18 U.S.C. § 1341 (1946), and transporting stolen property in violation of 18 U.S.C. § 2314 (1946). Id. at 8. Ap- plying the Blockburger test, the Supreme Court also ruled that the petitioners could be convicted and punished under both statutes even though the charges arose from a single act or scheme because each statute required the government to prove facts not essential to the other.6 Id. at 9. One of the dif- ferences that the Supreme Court identified was that the sto- len property statute, unlike the mail fraud statute, required “transporting [property], or causing it to be transported in in- terstate commerce.” Id. Another difference that the Supreme Court identified was that the mail fraud statute required use of the U.S. mail, while the stolen property statute did “not require proof that any specific means of transporting were used.” Id. The Supreme Court thus did not disregard the ele- ments in § 1341 and § 2314 that linked those statutes to sub- jects that Congress has constitutional power to regulate. Appellant’s argument that we can disregard the interstate commerce element in § 2252A(a)(5) when applying the Block- burger test also conflicts with this Court’s decision in United States v. Roderick, 62 M.J. 425 (C.A.A.F. 2006). In Roderick, the appellant argued that the Double Jeopardy Clause pre- vented him from being convicted and punished for both using a minor to create sexually explicit photographs in violation of 18 U.S.C. § 2251(a) (2000), and taking indecent liberties with a minor by taking sexually explicit photographs in violation

6 The Supreme Court has held that the Double Jeopardy Clause protects against successive prosecutions for the same offense and also against imposing multiple punishments for the same offense in a single trial. See Brown v. Ohio, 432 U.S. 161, 165 (1977). The Blockburger test determines what is the “same offense” in both con- texts. See Dixon, 509 U.S. at 696. (“In both the multiple punishment and multiple prosecution contexts, this Court has concluded that where the two offenses for which the defendant is punished or tried cannot survive the [Blockburger] ‘same-elements’ test, the double jeopardy bar applies.”).

5 United States v. Rice, No. 19-0178/AR Judge MAGGS, dissenting

of Article 134, UCMJ. Id. at 432. Applying the Blockburger test, the Court rejected this argument on grounds that each offense required proof of an element that the other did not. Id. The Court reasoned that only the § 2251(a) charge required proof that the appellant had used materials that had passed in interstate commerce, while only the indecent liberties charge under Article 134, UCMJ, required proof that the ap- pellant had taken the pictures with the intent to satisfy his sexual desires. Id. The appellant in Roderick contended that the Court should ignore the interstate commerce element be- cause it was “nothing more than a ‘limiting jurisdictional fac- tor.’ ” Id. The Court rejected this argument because the ap- pellant had not “identified any authority which would allow this court to disregard a statutory element of a crime during a multiplicity analysis simply because the same element was used by Congress as a jurisdictional hook and the element is readily established.” Id. Again, Appellant here has not cited any decision of this Court that has ignored statutory elements in applying the Blockburger test. In my view, the Court must follow Pereira and Roderick and consider the interstate commerce element in § 2252A(a)(5) when applying the Blockburger test. This ele- ment is indistinguishable from the interstate commerce ele- ment in § 2314 that the Supreme Court considered in Pereira and from the interstate commerce element in § 2251(a) that this Court considered in Roderick. Indeed, ignoring the inter- state commerce element puts the Court in conflict not only with the Supreme Court and our precedent but also with the U.S. courts of appeals for every circuit that considers criminal cases. In applying the Blockburger test, the U.S. courts of ap- peals routinely cite statutory elements concerning interstate commerce as differences between federal offenses.7

7 See, e.g., United States v. Patel, 370 F.3d 108, 116 (1st Cir. 2004) (maliciously burning a building used in interstate commerce in violation of 18 U.S.C. § 844(i) and using fire to commit mail fraud in violation of 18 U.S.C. § 1341); United States v. Maldonado-Ri- vera, 922 F.2d 934, 982 (2d Cir. 1990) (stealing property from a fed- eral insured bank in violation of 18 U.S.C. § 2113 and robbery af- fecting interstate commerce in violation of 18 U.S.C. § 1951); United States v. Bencivengo, 749 F.3d 205, 214–15 (3d Cir. 2014)

6 United States v. Rice, No. 19-0178/AR Judge MAGGS, dissenting

The question arises whether the present case might be dis- tinguishable from Pereira on grounds that the only element in § 2252A(a)(5) that is not included in the Article 134, UCMJ, offenses is its interstate commerce element. At least one court has held that the Blockburger test should not apply when statutes differ only in their jurisdictional elements. In United States v. Gibson, 820 F.2d 692, 697–98 (5th Cir. 1987), the court held that a defendant who robbed a postal clerk in a post

(causing someone to travel in interstate commerce to carry on un- lawful activity in violation of 18 U.S.C. § 1952 and obtaining of property from another under color of official right in violation of 18 U.S.C. § 1951); United States v. Jones, 797 F.2d 184, 186–87 (4th Cir. 1986) (receiving stolen property within a federal jurisdiction in violation of 18 U.S.C. § 662 and receiving stolen property that had moved in interstate commerce in violation of 18 U.S.C. § 2315); United States v. Payan, 992 F.2d 1387, 1392–93 (5th Cir. 1993) (aid- ing and abetting transportation of stolen goods in interstate com- merce in violation of 18 U.S.C. § 2314 and conspiracy in violation of 18 U.S.C. § 371); United States v. Metzger, 778 F.2d 1195, 1210 (6th Cir. 1985) (destruction of property used in interstate commerce in violation of 18 U.S.C. § 841(i) and destruction of property using ex- plosives that were transported in interstate commerce in violation of 18 U.S.C. § 841(d)); United States v. Fox, 941 F.2d 480, 487 (7th Cir. 1991) (possession by a felon of a firearm that had been trans- ported in interstate commerce in violation of 18 U.S.C. § 922(g) and robbery of a bank with a dangerous weapon in violation of 18 U.S.C. § 2113); United States v. Mann, 701 F.3d 274, 285 (8th Cir. 2012) (aiding and abetting the use of a weapon of mass destruction affect- ing interstate commerce in violation of 18 U.S.C. § 2332a and using an explosive to destroy a vehicle used in interstate commerce in vi- olation of 18 U.S.C. § 844(i)); United States v. Karlic, 997 F.2d 564, 571 (9th Cir. 1993) (attempting to damage property used in inter- state commerce in violation of 18 U.S.C. § 844(i) and using an ex- plosive in attempting to rob a bank in violation of 18 U.S.C. § 844(h)); United States v. Huffman, 595 F.2d 551, 554 (10th Cir. 1979) (theft of an interstate shipment in violation of 18 U.S.C. § 659 and theft of government property in violation of 18 U.S.C. § 641); United States v. Williams, 527 F.3d 1235, 1240–41 (11th Cir. 2008) (using interstate wire transmissions during a purported scheme or artifice to defraud in violation of 18 U.S.C. § 1343 and theft of fed- eral funds in violation of 18 U.S.C. § 666); United States v. Walker, 545 F.3d 1081, 1085 (D.C. Cir. 2008) (possession by a felon of a fire- arm that had been transported in interstate commerce in violation of 18 U.S.C. § 922(g)(1) and possession of an unregistered firearm in violation of 26 U.S.C. § 5861(d)).

7 United States v. Rice, No. 19-0178/AR Judge MAGGS, dissenting

office could not be convicted under both 18 U.S.C. § 2111, which proscribes robbery within the special maritime and ter- ritorial jurisdiction of the United States, and 18 U.S.C. § 2114, which proscribes robbery of a person having lawful custody of mail. The court recognized that a “mechanical ap- plication of the Blockburger rule” would indicate that the two offenses were not the same because they contained different jurisdictional elements. Id. at 698. But the court ruled that allowing convictions on both charges would not “satisfy the intended purpose of the Blockburger test,” which the court saw as allowing Congress to use similar statutes when neces- sary to address separate evils. Id. The court explained that “[a] jurisdictional fact, while a prerequisite to prosecution un- der a particular statute, is not in itself an evil that Congress seeks to combat.” Id. I find the reasoning of Gibson unpersuasive on several grounds and thus do not believe it provides a basis for distin- guishing Pereira from the present case. First, nothing in Pe- reira or any subsequent Supreme Court decision suggests that courts should draw a distinction between a jurisdictional element and any other kind of element in applying the Block- burger test. If the Supreme Court in Pereira had thought that the interstate commerce element and the U.S. mail element should be ignored, it would not have cited them as differences. Second, in my view, this Court should follow the actual rule that the Supreme Court announced in Blockburger and should not speculate about the rule that the Supreme Court may have intended to announce. I note again that the Su- preme Court made clear in Dixon that “Blockburger is the only test for ‘same offence.’ ” 509 U.S. at 708 n.13. Finally, no other U.S. court of appeals appears to have followed Gibson on this point, while several others have specifically rejected its reasoning.8 Even in the United States Court of Appeals for

8 See, e.g., United States v. Gladfelter, 168 F.3d 1078, 1084 (8th Cir. 1999) (upholding convictions for robbery in the special and maritime jurisdiction of the United States in violation of 18 U.S.C. § 2111 and taking by force and violence a motor vehicle that has been transported in interstate commerce in violation of 18 U.S.C. § 2119); United States v. Hairston, 64 F.3d 491, 495 (9th Cir. 1995) (upholding convictions for robbery in the special maritime and ter- ritorial jurisdiction of the United States in violation of 18 U.S.C.

8 United States v. Rice, No. 19-0178/AR Judge MAGGS, dissenting

the Fifth Circuit, a subsequent case has questioned Gibson’s rationale. See United States v. Agofsky, 458 F.3d 369, 372 (5th Cir. 2006) (following Gibson as a matter of Fifth Circuit prec- edent while expressing concern with its reasoning). For all of these reasons, the Court should not disregard the interstate commerce element in § 2252A(a)(5) when applying the Block- burger test. In my view, the Court also should not disregard the “ser- vice discrediting” element of the Article 134, UCMJ, offense when applying the Blockburger test. As noted above, Appel- lant argues that this Court can ignore this element because it is not truly a distinct element when the offense is possession of child pornography. Appellant reasons that possession of child pornography is inherently service discrediting, and thus stating this element separately does nothing to distinguish the Article 134, UCMJ, offenses from the § 2252A(a)(5) of- fense. I disagree with this reasoning because this Court has rejected the proposition that possession of child pornography is inherently service discrediting. In United States v. Phillips, 70 M.J. 161 (C.A.A.F. 2011), a court-martial found the appel- lant guilty of possessing child pornography in violation of Ar- ticle 134, UCMJ, and the Court of Criminal Appeals (CCA) affirmed. This Court reversed and remanded because the CCA’s opinion suggested that “the CCA may have conclu- sively presumed that [the appellant’s] conduct was of a nature to bring discredit upon the armed forces because [the appel- lant] possessed child pornography.” Id. at 167. The Court held that such a conclusive presumption was improper and that the CCA had to perform a factual sufficiency review. Id. Ac- cordingly, Appellant’s argument for ignoring the service dis- crediting element of Article 134, UCMJ, when applying the Blockburger test lacks merit.

§ 2111 and robbery of United States property in violation of 18 U.S.C. § 2114); McGann v. United States, 261 F.2d 956, 957 (4th Cir. 1958) (citing Pereira and upholding convictions for robbery in the special maritime and territorial jurisdiction of the United States in violation of 18 U.S.C. § 2111 and robbery of federally in- sured bank in violation of 18 U.S.C. § 2113), cert. denied, 359 U.S. 974 (1959).

9 United States v. Rice, No. 19-0178/AR Judge MAGGS, dissenting

II. Specification 2 Appellant argues that his trial by court-martial on Charge II, Specification 2, violated the Double Jeopardy Clause be- cause he had already been tried in federal court on a lesser included offense, namely, the possession charge in Count I of the federal indictment.9 Specification 2 alleged that Appel- lant distributed six child pornography images in violation of Article 134, UCMJ.10 Count I alleged that he possessed the same six images. Appellant contends that Count I in the fed- eral indictment is a lesser included offense of Specification 2 of Charge II at the court-martial because he necessarily pos- sessed the images that he distributed. The Government does not dispute that the Double Jeop- ardy Clause prohibits trying an accused for a greater offense after first having tried the accused for a lesser offense. A lesser included offense, by definition, does not include any el- ement that the greater offense does not. See Dixon, 509 U.S. at 705 (citing “the common proposition, entirely in accord with Blockburger, that prosecution for a greater offense . . . bars prosecution for a lesser included offense”). The Govern- ment, however, responds that the possession charge under § 2252A(a)(5) is not a lesser included offense of the offense charged under Article 134, UCMJ, because § 2252A(a)(5) re- quires proof of an element (i.e., transportation in or affecting interstate commerce) that the Article 134, UCMJ, offense does not.

9 The record raises a question about whether Appellant pre- served this argument when he pleaded guilty. But given that the Government has not argued waiver and that this argument does not concern any legal principles not already discussed, I will as- sume without deciding that the argument was not waived. 10 Specification 2 alleged that Appellant violated Article 134, UCMJ, in that he: did, at or near Carlisle Barracks, Pennsylvania, on divers occasions between on or about 30 November 2010 and on or about 6 December 2010 knowingly and wrongfully distribute 6 images of child pornog- raphy, as defined in 18 U.S.C. Section 2256, on a HP Pavilion Laptop computer, such conduct being of a nature to bring discredit upon the armed forces.

10 United States v. Rice, No. 19-0178/AR Judge MAGGS, dissenting

I agree with the Government that § 2252A(a)(5) is not a lesser included offense and therefore that no double jeopardy violation occurred. To convict Appellant of the charge in Count I in the U.S. District Court, the Government had to prove that the images that Appellant possessed had been transported in or affected interstate commerce. The Govern- ment did not have to prove this element at the court-martial in Specification 2. Therefore, the offense in Count I was not a lesser included offense of the offense in Specification 2.11 Again, Appellant has cited no applicable authority for ignor- ing the interstate commerce element. III. Conclusion The Blockburger test sometimes produces controversial results because it allows the federal government to charge an accused under two very similar but not identical federal stat- utes. See Lewis, 523 U.S. at 177 (Scalia, J., concurring) (rec- ognizing that “Blockburger’s emphasis on the formal elements of crimes causes it to deny the ‘sameness’ of some quite simi- lar offenses because of trivial differences in the way they are defined”). This case is perhaps an example. But we cannot ad- dress this concern by ignoring statutory elements. As the Su- preme Court itself said in Blockburger, if prosecution for two very similar federal offenses “be too harsh, the remedy must be afforded by act of Congress, not by judicial legislation un- der the guise of construction.” 284 U.S. at 305.

11 I do not reach an alternative argument that the § 2252A(a)(5) possession offense is not a lesser included offense of the Article 134, UCMJ, distribution offense because a person theoretically might be able to distribute images without possessing them. See United States v. Rice, 78 M.J. 649, 654 n.10 (A. Ct. Crim. App. 2018) (citing cases that address this issue).